The Promise of Human Rights. Jamie Mayerfeld
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stands to reason that if internal safeguards are vulnerable, help should be sought from the outside. External monitoring and constraint provide domestic checks and balances with the backing needed to operate most effectively. This is an argument for the internationalization of constitutional democracy. The claim I am making is not that transnational problems require democratic decision making at the transnational level (though that also is true), but rather that a commitment to preventing human rights violations by one’s own government makes the involvement of international institutions necessary. We often think of international human rights institutions as a means for certain countries to improve the human rights records of other countries. But international human rights institutions also help democracies fulfill their own constitutional commitments. They complete the domestic constitutional order.
I develop the argument in this chapter through an examination of the regional system of human rights protection in Europe.1 There can be no doubt that this system has contributed dramatically to the protection of human rights. I do not offer a simple celebration. There have been major shortcomings and outright failures. But honesty requires recognition of the regime’s achievements as well as its shortfalls. The plain fact is that it has altered the political course of many countries for the better and ensured the safety and well-being of large numbers of people.
The regime’s success has depended on a partnership connecting international institutions, states, and civil society. The regional bodies give nongovernmental actors new means to demand human rights improvements from states; committed states strengthen the powers and raise the standards of the regional bodies, and these in turn oblige states to honor their commitments. The regime has accomplished what few if any European states could have done on their own, even within the domestic sphere. It mirrors, reproduces, reinforces, and is in turn reinforced by the human rights commitments of the more democratically advanced states. It showcases the power and promise of cooperative constitutionalism.
Several lessons from the European experience are anticipated in the constitutional philosophy of James Madison. What I have in mind are the following broad themes: a belief that good constitutional design brings out the best while suppressing the worst in human nature; a simultaneous commitment to popular government and the protection of individual rights; an insistence on dividing power and duplicating responsibility so as to encourage deliberation and deter abuse; an appreciation for both the institutional and pedagogical value of bills of rights;2 an awareness that human rights face dangers from emboldened majorities on the one hand and privileged minorities on the other; an understanding that a plurality of interests and identities is a resource rather than a problem, and is indeed necessary to avert injustice; a flexible and experimental attitude that welcomes improved means to secure one’s constitutional objectives.
I presented the “Madisonian” case for strong international human rights institutions in the preceding chapter. Madison believed that checks and balances are necessary to prevent the abuse and misuse of political power. Yet checks and balances may be insufficient to withstand the pressure of faction, defined as a collective passion or interest unconstrained by justice. Madison famously argued that factions that might otherwise introduce injustice or tyranny in the individual states could be held in check by a compound republic. In the last few generations at least, history has offered some vindication of his theory. Federal institutions in the United States (federal courts, Congress, and the Department of Justice) have overruled or preempted state and local policy in order to uphold freedom of speech and religion, privacy rights, rights of the accused and prisoners’ rights, freedom from police brutality, freedom from discrimination, and the right to vote and to equal representation. While federal checks on local abuses are seriously incomplete (and have often arrived tragically late), and while they do not cancel abuses perpetrated by the center itself, their importance cannot be ignored.
But how do we guard against faction at the national level? How do we prevent national factions from permitting grave abuses in the states and introducing abuses of their own? Madison argued on sociological grounds that the problem was already solved. In a large federation, the principle of popular government would prevent tyranny by minority faction, while the heterogeneity of interests and identities would prevent strong majority factions from forming. Unable to appeal to group interests or passions, officials would be obliged to follow reason and principle. “In the extended republic of the United States and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”3
These words sound naïve today, when mass parties, mass media, and concentrated economic power make it all too easy for a majority or minority faction to take control of government. Moreover, contemporary countries are all vulnerable to nationalism, which may itself be considered a kind of faction, visibly so when it asserts itself against the just claims of foreigners and ostracized citizens. (One of Madison’s main reasons for supporting the union was his belief that it would lead to fewer American violations of the law of nations.)4 It is a notable advantage of international human rights institutions over domestic rights institutions that, due to the greater heterogeneity of their population base, they are less vulnerable to capture by faction. The fear of faction that led Madison to support a federal union over two hundred years ago becomes an argument, in today’s altered circumstances, for the international supervision of national policy. When Madison asked, “how many errors and follies would [America] not have avoided, if the justice and propriety of her measures had, in every instance, been previously tried by the light in which they would probably appear to the unbiased part of mankind?” he reminded us that nations are not fit to be judge in their own cause. Participation in a strong international human rights regime helps guard us from moral error. Europe has taken this lesson to heart.
Concurrent Responsibility as a Principle of Democracy
Though I emphasize the contributions of international human rights institutions, I want strenuously to avoid the implication that they should function unaided. States (countries) remain responsible for the protection of human rights. When a state enlists the support of international institutions, the support should take the form of reinforcing and assisting commitments that the state has previously lifted onto its shoulders. The idea is not to displace responsibility upward, but rather to reaffirm one’s responsibility (as a state) by increasing the number of other entities that are simultaneously responsible for fulfilling a shared commitment to human rights.
The key concept is “concurrent responsibility.” I defined this in the last chapter as the responsibility of each member in a group to ensure that all exercise their power responsibly. More precisely, it refers to a situation in which several actors share an obligation, each is independently capable of fulfilling the obligation or ensuring that it is fulfilled, and each stands ready to do so if the others do not. An example discussed in the previous chapter is the concurrent responsibility of the U.S. president, Congress, and judiciary to block unconstitutional laws. Another example is the complementarity principle of the International Criminal Court (ICC). Under this principle, states are expected to prosecute genocide, war crimes, and crimes against humanity perpetrated by their citizens or occurring on their territory. (In truth they are expected to prevent such crimes from being committed in the first place.) However, if they fail to launch criminal proceedings, whether from a lack of will or capacity, the ICC is empowered to take action in their stead. One benefit of the ICC’s complementary jurisdiction, it has been argued, is that it will encourage states to take their human rights responsibilities more seriously.5
We can see concurrent responsibility at work in a certain understanding of civil society. Alexis de Tocqueville and John Stuart Mill celebrated the civic initiative of American communities—their readiness when necessary to organize collective tasks normally entrusted to the state—because they believed it made citizens both less dependent on the state and better qualified to participate in government.6 But concurrent responsibility is central to democratic citizenship at a still deeper level, for it is implicit in the very idea that political decisions should be made by the people. Every citizen casting a vote has the responsibility to support the best policy, defined not in terms of one’s personal interests, but in terms of justice and the common good. Other